Investigations: Seven exceptions to the search warrant rule - Training - LawOfficer.com

Investigations: Seven exceptions to the search warrant rule

 


 

Dr. Larry F. Jetmore | Friday, May 30, 2008

Knowing how to legally search a person, place or thing and properly seizing evidence are basic requisites to the investigative process. Officers also must have a clear understanding of when a search and/or arrest warrant is required and when it s not.

The Fourth Amendment protects citizens from unreasonable government searches and seizures of their persons, houses, papers, and effects. The Fourth Amendment also states no warrants shall be issued but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized. (Minnesota v. Dickerson, 113 S. Ct. 2130 (1993)1.

However, both the U.S. Supreme Court and federal courts have carved out specific, limited exceptions to the Fourth Amendment search warrant requirement, which are commonly referred to as the seven exceptions to the search warrant rule.

The seven exceptions to the Fourth Amendment are exigent circumstances, search incidental to a lawful arrest, consent, plain view, caretaker function, inventory/impounded vehicles and motor vehicle.

Exigent Circumstances

Exigent means emergency, which means under life saving circumstances. Example: An elderly person in a wheel chair is trapped inside a burning apartment. Because lives are at stake, an officer can forcibly enter the apartment without a search warrant to rescue the person. The key: time and public need. The officer doesn t have time to get a warrant, and there s an immediate risk of harm to the public that requires immediate official action.

Another example: a situation in which public safety is paramount. If officers are being shot at, they may have to conduct a search of premises or a building without a search warrant because both the officers and the public are in imminent danger. Likewise, if an officer has probable cause to believe evidence is going to be destroyed, or if an officer is in hot pursuit of an escaped felon who runs into a house, a warrant isn t required. In Mincey v. Arizona (1978)2, the Supreme Court ruled officers don t have to delay a search if doing so endangers their lives or others.

Search Incident to Lawful Arrest

In a 1973 U.S. Supreme Court decision (United States v. Robinson, 17 414 U.S. 218)3, the Court stated, It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of the lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a reasonable search under the amendment.

The arrest must be valid under law. For the search without a warrant to be valid, the officer must be able to specifically articulate probable cause that the person committed a crime and there must have been an intention on the part of the officer to arrest prior to the search of the person. What is prohibited is the search of a person who is not yet under arrest in which contraband is found and then an arrest for possession of the contraband based on that search. The search of a person under arrest is subject to the areas under that person s immediate control (Chimel v. California, 395 U.S. 752 (1969)4.

Example: The police observe a woman with a purse commit a crime. Officers may search her purse without a warrant. If officers find contraband and/or evidence of a crime in the purse, officers may charge the woman for both the original incident and for the evidence found in the purse.

Good report writing is key here. It s important for the officer to articulate the probable cause factors leading the officer to believe the woman committed a crime and the search of the purse was incidental to the arrest.

Consent

Officers and prosecutors face the heavy burden of proof, and searching a person or place with consent always presents problematic legal issues. Officers must prove the defendant voluntarily consented to a search, and there were no threats or promises of any kind.

Officers can search without a warrant if they have consent from a person who has the authority to give it. Probable cause is not required if the consent is knowingly and intelligently given.

In addition, there are several legal issues officers must overcome when conducting interviews, interrogating and taking statements and confessions, including:

1. Who can consent to a search;

2. What constitutes voluntarily consent; and

3. What limitations does the law impose on those conducting the search.

Age is also considered in legally defining consent. A child can t give consent, so you must know the age a person is considered to be a child in your state. Likewise, a parent may consent to the search of a child s room where no rent is paid, but a hotel manager or landlord may not provide legal consent to search unless the room or apartment is abandoned.

In addition, it s difficult to prove a person impaired by alcohol, drugs, a mental condition (psychological and/or genetic dysfunction), injury or a language barrier voluntarily gave consent. In a 1990 decision, (Illinois v. Rodriguez 497 U.S. 177)5 the U.S. Supreme Court ruled a person can consent to a search if the facts available to the officer at the time of entry warrant a man of reasonable caution to believe the consenting party has authority over the premises.

Most officers carry a legal form with carefully written consent-to-search language people sign to indicate their voluntary consent to the search. However, in a 1973 Supreme Court decision (Schneckloth v. Bustamonte, 412 U.S. 218)6, the court ruled officers don t have to specifically advise an individual they don t have to consent. A person s consent, even if in writing, can be withdrawn at any time and the police must stop searching.

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Dr. Larry F. JetmoreDr. Larry F. Jetmore a retired captain of the Hartford (Conn.) Police Department, has authored five books in the field of criminal justice, including The Path of the Warrior. A former police academy and SWAT team commander, he earned his Ph.D. at Union University in Ohio, plus master’s, bachelors and associate degrees in Connecticut. Jetmore directs the criminal justice program at Middlesex College in Middletown, Conn., and is a full-time faculty member. His new book, The Path of the Hunter: Entering and Excelling in the Field of Criminal Investigation, is available from Looseleaf Law Publications. To order a copy, call 800/647-5547.

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